ADA – Employee’s Refusal of Employer’s Proposed Accommodations Negates ADA Claim

ADA – Employee’s Refusal of Employer’s Proposed Accommodations
Negates ADA Claim

Here’s the sequence:  employee asks for Americans with Disabilities Act (“ADA”) accommodation; if employee qualifies, employer offers reasonable accommodation; employee tries accommodation to see if it accomplishes the goal.  But, a Microsoft employee rejected the company’s proposed accommodations and later filed a lawsuit claiming violation of ADA.  Result:  the employee could not establish an ADA claim per the U.S. Court of Appeals.

The law requires employers and employees to actively engage in accommodation discussions when trying to determine reasonable accommodation(s).  But there is no requirement that an employer agrees to an employee’s preferred accommodation if there is another accommodation that is less expensive or easier to provide, so long as it will have the same effect.

In the Thompson v. Microsoft Corp case, the employee received performance complaints that he said was caused by his autism spectrum disorder (“ADS”).  He was an accountant technology strategist at the time and requested accommodation for ADS by working on only one project at a time, an assistant to handle his administrative tasks, and permission to work from home.  That’s quite an ‘ask.’

As Thompson also had said that he wanted to move to an Enterprise Architect (“EA”) senior-level executive position, Microsoft told Thompson that some of his accommodation requests were incompatible with the EA role.  Thompson then withdrew the requests and asked that HR not tell his manager about his ADS.  He then applied for an EA position in Austin, Texas and got the job.  But, Thompson could not cut it in the EA position as he failed to submit his deliverables on time and what he did eventually submit was not up to par.  It was at that time that Thompson told his then manager of his ADS and asked for accommodations that included a noise cancelling headset and a specialized job coach, which Microsoft granted.  He also asked for an administrative assistant, a scribe, and specialized software to support time management and organization for people with ADS.  Microsoft told Thompson that his requests for assistants to perform some of the EA work would detract from his ability to carry out the roll successfully.  Microsoft and Thompson continued to ‘negotiate’ on the accommodation requests, but Thompson remained unsatisfied.

Microsoft continued to try to remedy the problem by removing Thompson from the EA position and began a job-reassignment process, which is another employer accommodation under the ADA.  Thompson objected to reassignment, claiming he was now willing to accept the employer’s previously offered accommodations.  But, Microsoft rejected his negotiating position and proceeded with the job-reassignment.  Thompson refused any position other than in Austin or any position that paid a lower salary and Thompson turned to a long-term disability leave, never returning to work at Microsoft.  He sued Microsoft for failure to accommodate, discrimination, and hostile work environment under the ADA.  He lost.

As long as an employer engages in a good faith effort at the interactive process and then offers a reasonable accommodation, the responsibility to ensure that the interactive process does not break down is the employee’s burden.  The Court of Appeals said that “[t]he ADA does not require an employer to relieve an employee of any essential functions of his or her job, modify those duties, reassign existing employees to perform those jobs, or hire new employees to do so.”  It held that Microsoft’s continuing the ADA interactive process by placing Thompson in job reassignment and not terminating him was good faith negotiations on reasonable accommodations, which occurred over several months.  And, as Thompson went on long-term disability leave, it was he and not Microsoft that had made the change (i.e. Microsoft did not make any adverse employment decision).  Further, Microsoft making reasonable accommodation through job reassignment while Thompson also received criticism of his work did not amount to harassment.

Here at Epps & Coulson, LLP we understand that the ADA interactive process may be confusing.  We are available to advise.  Feel free to contact Dawn:

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